We previously posted about the trial decision in R. v. Precision Drilling Ltd., 2015 ABPC 115 (CanLII), where the court found the employer guilty of two charges arising from a workplace fatality at a drilling rig. The employer was convicted of failing to ensure the safety of the worker, and failing to eliminate an identified hazard. The employer appealed the convictions.

At trial, one of the issues was the question of industry standards, in particular, the use of an interlock/warning device. On appeal, the court noted that the trial judge had correctly stated that compliance with industry standards and legislation would not, of itself, be enough to establish due diligence. In this case, the appeal court found that the evidence was that the employer did follow industry standards. The trial judge however found that the interlock device was an engineered solution in place with other industry competitors, that could have been used to avoid the accident. The trial judge relied on this in concluding that the employer had not established the defence of due diligence.

The appeal court found that the trial judge’s conclusion about the competitor’s use of the interlock device was contrary to the evidence. In fact, the evidence at trial was that only one competitor had an interlock device on one rig, and that rig was a different type of rig from the rig in question. Further, the Occupational Health and Safety inspectors were not aware of the interlock device prior to the accident. Therefore, the appeal court determined that the trial judge’s misapprehension of the evidence was a palpable and overriding error. It also found that the trial judge made a number of additional errors in the treatment of the evidence which undermined the verdict.

Further, while the appeal court did not find any error in the trial judge’s decision to admit evidence of the employer’s post-incident conduct at trial relating to its development and use of an interlock device after the accident, the trial judge’s use of that evidence was not supported by the evidence. The appeal court found that, in addition to the error about the industry’s use of the interlock device, there was no evidence that the competitor’s “small bit of common-sense engineering” had an effect on the drilling industry. The interlock device had not been adopted in the Occupational Health and Safety Code and government inspectors did not shut down rigs that did not have the interlock device.

The appeal court allowed the appeal on both counts, setting aside the trial verdicts. Because there was admissible evidence on each of the elements of the charges, rather than entering an acquittal, the appeal court ordered a new trial.

Currently, Alberta’s occupational health and safety legislation contains requirements relating to workplace violence. However, since “violence” is defined in the legislation as conduct that caused or is likely to cause physical injury, the existing requirements do not apply to many cases of workplace harassment.

The proposed amendments include a definition of “harassment” that would require the conduct to constitute a threat to the health or safety of the worker. The amendments would add a specific obligation on employers to ensure, as far as it is reasonably practicable, that its workers are not exposed to harassment in their employment. It would also add an obligation on workers to refrain from causing or participating in the harassment of another worker. Employers would be required to establish and administer a workplace harassment policy and investigate complaints of workplace harassment. Workers who are not satisfied with the outcome of the employer’s investigation process would have the option to file a complaint with an officer.

An Employer was required to revert to a previous shift schedule in accordance with its obligations under the collective agreement, notwithstanding its claim that the previous shift schedule was less safe.

Initially, the majority of the employees at the Employer’s mine worked a rotating 2X2 shift schedule whereby employees each worked 12 hour shifts. They worked 2 day shifts, had a 24 hour break, followed by 2 night shifts and then 4 days off.

In 2014, after more than a year of negotiations, the Employer and the Union entered into a Memorandum of Agreement which included 2 Letters of Understanding setting out a new shift schedule. The new shift schedule was a 4X4 rotating shift. Employees would continue working 12 hour shifts but would do so in 4 day shifts, followed by 4 days off, then work 4 night shifts, followed by 4 days off. The agreement was for a 9 month trial period after which employees would vote on whether they wanted to continue permanently with the 4X4 schedule, or return to the previous 2X2 schedule.

At the end of the 9 month trial period, the employees voted against a permanent change to the 4X4 schedule. Pursuant to the agreement, the Employer was required to return to the previous schedule within 60 days. The Employer refused, citing safety issues. During the trial period, it had monitored safety and performance indicators which it believed demonstrated that the 4X4 configuration was safer and more productive than the 2X2 arrangement. For instance, the Employer claimed that the trial period had yielded the lowest number of total incidents, with a 23% overall reduction, in spite of the Employer encouraging greater incident reporting. Although this was an unintended consequence, the Employer concluded that it could not, in good conscience, return to a shift arrangement it considered to be less safe. The parties discussed numerous options but were unable to come to an agreement. Both the Union and the Employer filed grievances.

The arbitrator found that the Employer was required to return to the 2X2 schedule in accordance with the agreement and in light of the results of the employees’ vote. The arbitrator then considered whether the Employer’s safety concerns were sufficient to justify its refusal to return to the 2X2 shift as required. The arbitrator accepted that the safety improvements were real but was not persuaded that a return to the 2X2 shift could be categorized as unsafe or in violation of the Employer’s obligations under the occupational health and safety legislation. The arbitrator found it difficult to conclude the 2X2 shift was unsafe given that the Employer had operated this shift for decades and agreed with the Union’s point that improved safety was not a “trump card that can simply be pulled out to defeat collectively bargained consequences.” Overall, the evidence fell short of establishing that a return to the 2X2 shift would be unsafe. The arbitrator appeared to acknowledge that the Employer may have an overriding right to impose a new schedule based on safety issues, despite its collective agreement commitments; however, it compared that right to the employees’ right to refuse unsafe work as a right that had to be exercised seriously and sparingly. Having the right did not mean that employees could refuse work because there may be a somewhat safer way of doing the work.

The arbitrator ultimately upheld the Union’s grievance and directed the Employer to return to the previous 2X2 schedule as soon as possible. However, he urged the parties to work together to develop alternative schedules if the Employer considered it necessary. He also urged the Union and its members to give renewed attention to the safety considerations involved and not to let other issues direct attention away from proposals that offered a demonstrable improvement in safety.

In this case, a public company (Newco) had purchased the assets and undertaking of a business (Oldco) as part of a larger national transaction. Newco then carried on the business under a new name and a new corporate structure. The WCB had conducted a risk assessment and decided to combine Newco and Oldco’s experience records. Oldco had a poorer than average experience record compared to its risk class; therefore, the result of the combination was that Newco was forced to assume Oldco’s poor risk assessment. This resulted in higher WCB premium costs to Newco.

Newco requested a review of the WCB’s decision from the Dispute Resolution and Decision Review Body (DRDRB). The DRDRB upheld the decision and Newco then appealed that decision to the Appeals Commission for the Alberta Workers’ Compensation.

The Appeals Commission reviewed the WCB’s policies and governing legislation. The WCB’s policy provides that when the ownership of a business changes, the WCB will typically review the situation to determine if a combination of experience records is warranted. Thus, Newco’s acquisition of Oldco triggered a review to assess whether there had been a change in the risk.

The Appeals Commission reviewed the criteria set out in the WCB policy that should be considered by the WCB when considering its risk assessment: ownership, affiliation and control, business continuity, continuity of management personnel, change in financial and operational control, continuity of health and safety programs and disability management, intercompany transactions, and the transfer of workers between businesses. The WCB policy does not weigh these criteria and thus the process is discretionary.

The Appeals Commission ultimately concluded that the changes implemented by Newco had resulted in a substantial improvement in the risk profile of Oldco. Therefore, it was not reasonable for the WCB to combine Oldco’s unfavourable experience record with Newco’s. The Appeals Commission relied on the following factors:

Oldco was an “orphan division” that did not have a corporate structure focused on occupational health and safety matters;

There had been no overt efforts by Oldco’s directors or executives to manage or improve its occupational health and safety aspects;

Newco was a division of an international organization that intended to operate the business in accordance with the high standards expected of an international organization;

Newco had an explicit plan to revise the business’ safety culture and focus on preventative safety;

Newco revised the organizational structure of Oldco, with executives in place who were specifically tasked with the responsibility for workplace safety;

Newco rebranded Oldco, putting its own reputation in jeopardy if it failed to properly Oldco’s short comings;

Newco made several capital investments to enhance Oldco’s safety;

Newco brought in an appropriate corporate structure to support its safety initiatives; and

The Appeals Commission found that these factors suggested a significant improvement in Oldco’s risk profile and overwhelmed the other policy criteria in this case. The Appeals Commission placed significant weight on the importance of having an effective corporate management structure in place to deal with occupational health and safety matters. It described Oldco as “drifting without corporate oversight, direction or investment” and without an established safety program. Under Newco, the business had a sophisticated safety program in place and the appropriate structure to ensure that the safety program were adhered to. Therefore, it was not appropriate to combine the experience records.

This decision highlights yet another consideration for potential purchasers of a business and notes the risks associated with taking over a business that has a poor WCB record. It also highlights some of the steps that a purchaser can take to minimize the risk that it ends up being saddled with the vendor business’ WCB failings.

The Alberta Court of Appeal has recently confirmed that an owner/developer of a condominium conversion project was not liable for damages in a civil action commenced by a worker.

The action arose from an incident in March 1994 when the worker was working on a rooftop of a condominium development worksite owned by the respondent. He slipped on an icy roof and fell through an unmarked piece of plywood that was covering a hole cut for a skylight. The worker sustained very serious injuries as a result and commenced an action against several parties including the developer. The other defendants were found to fall within the protection of the Workers’ Compensation Act and so the action proceeded to trial solely against the developer. The trial decision was reviewed in our October 6, 2014 post.

On appeal, the Court confirmed the Trial Judge’s finding that the developer did not become liable in negligence by application of the requirements of the Occupational Health and Safety Act. While the statute did inform the common law, it did not create civil liability.

The focus of the appeal was on whether the developer should be vicariously liable for the acts of the contractor it had retained to provide supervisory management services. The contractor was protected from suit under the Workers’ Compensation Act. The worker raised several different arguments to attempt to impose vicarious liability against the developer; however, the Court of Appeal rejected each of them. One of the concerns expressed by the Court of Appeal in relation to the worker’s argument was that his reasoning would make the developer “liable almost to the level of an insurer” for all significant physical work being performed by a contractor or subcontractor on a construction site. As such, this decision will be welcomed by developers in Alberta.

A small, family owned and operated custom cabinet business was fined $75,000 plus the Victim Fine Surcharge of $11,250 after pleading guilty to failing to ensure, as far as reasonably practicable, the health and safety of a worker. The charges stemmed from a workplace incident in which a worker had slipped and caught his hand on a piece of machinery. The machine’s pressure sensitive mat safeguard that would have shut down the machine had been bypassed. It had been damaged approximately 3 years earlier but the employer chose not to replace it.

The impact with the machine caused the worker’s flesh to be peeled back and he also sustained a broken wrist. The injured worker had been trained to operate the machine and was aware of its safety features, including the fact that the safety mat was not operational.

The Court noted that the primary function of sentencing for regulatory breaches was deterrence; however, sentencing was still an individualized process requiring that all factors be considered, not just deterrence. The relevant factors included the financial circumstances of the corporate defendant. In the Judge’s view, the larger the corporation, the larger the fine. Conversely, when sentencing smaller corporations with more restrictive financial viability, the Court should apply a sentence that reflects that situation while still deterring offenders in similar circumstances from committing similar offences.

The other factors considered by the Court in its sentencing decision were:

The employer had no previous safety related offences;

The employer properly trained its employees and had regular safety training sessions;

The employer pled guilty, was remorseful and cooperative;

The employer recognized that it was accountable and an officer had been present in court during the proceedings;

The injuries sustained were at the lower end of the severity continuum;

Although a fine of up to $100,000 (as suggested by the Crown) would not devastate the employer, it would certainly impose a severe sting on the employer; and

While the employer was negligent in not repairing the safety mat, its conduct did not constitute gross negligence.

In light of these factors, the Court considered the Crown’s suggested amount of $100,000 to be too high. The Court determined that a fine of $75,000 was appropriate as that was a substantial and significant amount that would not be viewed as a slap on the wrist. It would be clearly felt by the employer and would serve as a warning for other similar offenders in similar circumstances.

Drug and alcohol testing policies have long been of key importance for many employers, particularly those who have employees in safety sensitive positions. Now, the Supreme Court of Canada is set to consider drug and alcohol policy issues after it granted leave to appeal on a judgment released last summer. Read full article here.

In a unique decision, an Alberta employer, Needoba Construction Ltd., which pleaded guilty to the general charge of failing to ensure, as far as it is reasonably practicable to do so, the health and safety of a worker, has received a sentence which includes 18 months of corporate probation and 200 hours of community service. The employer was also sentenced to a fine of $11,150 including the victim fine surcharge.

The decision stems from a 2012 incident where a worker fell over 6.5 metres through an uncovered stairwell opening at a residential construction site. The worker sustained paralytic injuries. The employer did not have a fall protection plan in place at the work site. The employer was initially charged with 4 counts under the Occupational Health and Safety Act (Alberta) but after it entered a guilty plea on the general charge, the remaining counts were dropped.

A corporate representative will be completing the community service time with a non-profit organization called Hearts and Hammers which renovates homes for people in need with mobility challenges.

While the Occupational Health and Safety Act (Alberta) gives the court fairly broad discretion and powers to make other orders in addition to, or as an alternative to, fines or imprisonment, this is the first time that community service has been ordered against an employer for an occupational health and safety violation.

This case serves as an example of what degree of conduct will or will not constitute obstruction of an officer in a workplace investigation.

The accused was charged under the Safety Act (NWT) with 2 counts of obstructing a safety officer arising from 2 meetings between the accused and the safety officer tasked with investigating a workplace accident. At trial, the accused and the officer had differing versions of what had occurred in the meetings. Ultimately, the Court found the accused to be an evasive witness and preferred the evidence of the officer.

The section of the Safety Act in question required the Crown to prove that the accused had (a) obstructed or hindered (b) a safety officer (c) engaged in carrying out his duties. The Court held that this required an obstruction or hindrance of the investigation itself – not just the safety officer; that the accused’s actions had to be deliberate, with knowledge that the officer was engaged in carrying out his duties; and that the accused intended to prevent the progress of the investigation.

In the end, the Court found the accused not guilty of the count relating to the first meeting. In that meeting, the accused had been loud and aggressive and “vented” but he had responded to the investigator’s questions. While he had refused to provide a written statement and drawing, his conduct did not impede or delay the progress of the investigation. However, the Court found the accused guilty of the count relating to the second meeting. In that meeting, the accused confronted the investigator, grabbed him by the arms, pushed him out the door, and slammed the door behind him, all before the officer had asked any questions. The accused knew the investor was there to ask him questions about the incident and the Court found that the accused’s conduct in that meeting did halt the progress of the investigation.

Work Safe Alberta has recently revised a Bulletin regarding some aggressive, high pressure sales tactics being used by some WHMIS training providers. The Bulletin serves as a reminder to Alberta employers that while WHMIS training is required for workers who work with WHMIS products, the training does not need to be completed by a commercial training provider. Employers should consider the specific training required depending on the particular work site and the employees job duties and tailor their training programs accordingly. The Bulletin can be found here.

Work Safe Alberta has released an Occupational Health and Safety bulletin to assist Alberta employers and workers understand the impact of the recent amendments to the federal WHMIS legislation ( see my earlier blog post Federal government announces changes to WHMIS Legislation ) particularly during the transition period when suppliers have the option to comply with either the new WHMIS system (WHMIS 2015) or the old system (WHMIS 1988).

During the transition period, Alberta employers may receive hazardous products that follow either WHMIS 1988 or WHMIS 2015. Employers will need to be familiar with both systems and be able to educate and train workers on both systems. The Work Safe Alberta bulletin provides guidance to employers in meeting their WHMIS obligations during this transition period and until Alberta’s occupational health and safety legislation is amended to align with the federal WHMIS changes.

The federal government has announced certain amendments to the federal Workplace Hazardous Materials Information System (WHMIS) legislation which covers suppliers of hazardous chemicals in Canada. The purpose of the amendments is to align with the Globally Harmonized System for Classification and Labelling of Chemicals (GHS). The GHS is being adopted by countries around the world and provides a consistent international system for chemical classification and labelling.

While the amendments came into force February 11, 2015, there will be a transition period during which suppliers can comply with either the old WHMIS system (WHMIS 1988) or the new WHMIS system (WHMIS 2015).

Alberta’s Occupational Health and Safety Code, 2009 (OHS Code), Part 29 contains the applicable WHMIS requirements for employers and workers in Alberta and is in the process of being amended to align with the federal legislation and the GHS. It is anticipated that there will also be a transition period during which Alberta employers can comply with either or both WHMIS systems.

The Alberta government has made revisions to Alberta’s Occupational Health and Safety Code and has invited the public to provide comments on the proposed changes by way of surveys. The deadline for completing the surveys is January 31, 2015.

Some of the proposed changes include requiring employers to develop written policies and procedures to deal with workplace harassment (in addition to workplace violence) and changes to Part 29 – WHMIS to align with the proposed federal legislation.

An Alberta employer has been sentenced to a fine of $80,000 plus the 15% victim fine surcharge following a workplace incident which occurred in 2011 at its distribution center.

A worker was injured while bending down under a conveyor to plug in a portable weigh scale. As she bent down, she felt herself being propelled violently backward. A subsequent investigation determined that her hair had become entangled in the drive shaft under the conveyor. She sustained numerous injuries, losing part of her thumb and part of her hair.

At trial, the employer was convicted of two offences under the occupational health and safety legislation, the court finding that the employer had failed to establish the defence of due diligence. In its sentencing decision, the court considered the employer’s safety policies and its corporate commitment towards safety to be mitigating factors. However, the court noted that the employer had been convicted for failing to use all reasonable measures to ensure the safety of its workers who worked near the conveyor. Company officials had failed to recognize, over a four year period, that a large portion of the conveyor was unguarded. The court was also critical of the training given to workers about the dangers of conveyors. Thus, while the employer was concerned about safety, the court found that it had not been vigilant enough.

The court also considered the impact of the incident on the worker as increasing the gravity of the offence. However, the lack of a guilty plea was not treated as an aggravating circumstance. The court also inferred that the employer was remorseful based on the steps it had taken following the incident, and considered that a mitigating circumstance.

The court reviewed the sentencing jurisprudence but considered this case to be unique in relation to the fact that the employer’s oversight took place over four years and caused considerable pain and disfiguring injuries. Thus, a fine of $80,000 was considered appropriate.

This case serves as yet another example of the difficulty of successfully establishing a due diligence defence. It is also a reminder to employers to ensure they perform appropriate and thorough safety inspections and consider all aspects of the workplace that could potentially pose a danger to workers. This decision also demonstrates that while sentencing precedents are useful, the court is not bound by them and must consider all of the circumstances of the case in determining an appropriate sentence.

Over 20 years after a workplace incident that seriously injured a worker, the Alberta Court of Queen’s Bench has dismissed the worker’s civil action against a developer.

The worker had been working on a rooftop of a condominium conversion project in March 1994 when he slipped on an icy roof and fell through a piece of plywood covering a hole cut through the roof for a skylight. The worker sustained serious injuries and was rendered a paraplegic. A report from Alberta OHS prepared following the incident noted several deficiencies at the work site but charges were not laid.

The worker commenced a civil action against three parties thought to be outside the workers’ compensation scheme. Two of those parties were ultimately let out of the action after the Court determined that they did fall within the workers’ compensation scheme. The remaining defendant was the owner of the property and the developer of the project. The worker alleged that the developer was liable for the incident on the basis of negligence in the development and supervision of the project, vicarious liability for the project manager, and breaches of the Occupier’s Liability Act.

One of the aspects considered by the trial judge was the impact of the statutory requirements under Alberta’s Occupational Health and Safety Act (“OHSA”). The Court confirmed that while a breach of the OHSA could inform on the reasonable standard of care, it could not create an enforceable duty. Further, the evidence did not establish that the OHSA had been breached as it did not impose any duties on an owner/developer. The OHSA in force at the time of the incident (RSA 1980) has since been amended but while many aspects of the legislation have since changed, the current OHSA also does not impose any duties on an owner directly, unless the owner is considered the prime contractor.

Ultimately, the Court found that while the developer did owe a duty of care to the worker, that duty was limited in scope and was restricted to the selection of a competent project manager. The developer was not responsible for supervising safety at the work site. The court found that the developer’s selection of the project manager was reasonable and satisfied its duty of care to the worker. Further, the Court determined that the project manager’s relationship to the developer was that of an independent contractor such that there was no basis for a finding of vicarious liability. The Court also dismissed the worker’s claim that the developer was liable under the Occupier’s Liability Act on the basis that the developer had exercised reasonable care and supervision of the project manager.

The Court did however proceed to find (in obiter) that the project manager was negligent on the basis that it had: failed to keep the roof clear of ice and snow and failed to ensure that an appropriate cover was designed and appropriately secured.

While the developer in this case was not found liable, this case serves as an important reminder of the importance of ensuring that the requirements under the OHSA are met, and notes that in certain cases, the failure to do so may expose parties which are outside of the protection of the workers compensation scheme to damages in a civil action.

On October 31, 2013, the Alberta Court of Queen’s Bench released the sentencing decision in R. v. XI Technologies Inc., 2013 ABQB 651. A summary of the Alberta Court of Appeal’s decision affirming the employer’s convictions under Alberta’s Occupational Health and Safety Act can be found here.

The Court of Queen’s Bench sentenced the employer to a fine of $275,000, inclusive of the victim fine surcharge. The Crown had proposed a fine of $400,000 inclusive of the victim fine surcharge. The employer’s counsel argued that figure was too high without specifying a range of what would be appropriate.

The Court considered a number of aggravating factors, including: the Legislature’s increase to the maximum fines for a first offence under the Occupational Health and Safety Act from $150,000 to $500,000; the goal of deterrence; and the fact that the accident had resulted in a fatality. The Court also considered a number of mitigating factors such as: the work environment was not the usual workplace and the activities the employee was performing were unique; the employer was not operating the machine to make a profit; the risk of death was not probable; the employer had taken sincere, albeit inadequate steps to ensure safety and so, although the employer was negligent, it was not knowingly non-compliant with safety standards or recklessly indifferent towards employee safety; the employer was genuinely remorseful; the employer did not have a prior record; and the employer had made a donation to fund a memorial bursary.

This decision confirms that Alberta courts will continue to impose significant fines for breaches of the OH&S legislation, particularly where those breaches result in a fatality. It also highlights that employers must remain vigilant to safety issues in unexpected circumstances where employees are operating outside of their core work functions and that the employer’s ultimate responsibility for safety cannot be delegated to employees or third parties. Finally, this case provides that while employer donations will be considered as a mitigating factor in sentencing, they will not be credited dollar-for-dollar.

Effective October 1, 2013, certain changes to Alberta’s occupational health and safety legislation came into force which allow an Occupational Health and Safety Officer to issue administrative penalties against any party regulated by the legislation (i.e. workers, contractors, employers, prime contractors and suppliers), for violating or failing to comply with the occupational health and safety legislation.

Administrative penalties can be up to $10,000 per violation per day. The amount of the administrative penalty in each case will be set by the Officer upon considering the seriousness of the contravention or failure to comply, the risk of harm resulting, and any other factors the Officer considers relevant. The person subject to the administrative penalty must be given at least 30 days to pay. Administrative penalties can be appealed to the Occupational Health and Safety Council. A person who pays an administrative penalty cannot be charged with an offense under the legislation with respect to the same contravention or non-compliance. The administrative penalty must be given within two years after the contravention or non-compliance. If unpaid, the administrative penalty can be enforced as a judgment.

In addition, as of January 1, 2014, further changes to the legislation will come into force which will enable Occupational Health and Safety Officers to issue tickets to workers and employers who are in contravention of certain listed provisions of the occupational health and safety legislation. The amount of the tickets will range from $100 to $500. These tickets will be essentially the same as traffic tickets – they are given on the spot upon a contravention of the law. A person receiving the ticket can plead not guilty and go to court.

This new system provides a middle ground in the enforcement spectrum which, until now, only allowed for either orders to comply or prosecutions through the courts. These new measures are intended to act as an additional tool to address non-compliance with the legislation.

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